Delhi District Court
Smt. Mohini Jain vs Sh. Shahzad Rai Jain on 13 October, 2011
IN THE COURT OF SHRI P.S. TEJI : DISTRICT JUDGE &
ASJ, I/C (EAST) cum ADDL. RENT CONTROL TRIBUNAL,
KARKARDOOMA COURTS, DELHI
RCA No.12/2011
Unique Case ID No.02402C0110602011
1. Smt. Mohini jain
Widow of D.K.Jain
2. Sh. Rajiv Jain
S/o Late Sh. D.K. Jain
Both R/o X/3786, Gali No. 9,
Shanti Mohalla, Gandhi Nagar,
Delhi110031. ... Appellants
Versus
1. Sh. Shahzad Rai Jain
S/o Sh. Sita Ram
R/o 3742, Gali No. 8,
Shanti Mohalla, Gandhi Nagar,
Delhi110031.
2. BSES Power Ltd.
Krishna Nagar, Delhi110051. ... Respondents
Date of Institution : 13.04.2011
Date of order reserved : 30.09.2011
Date of order : 13.10.2011
RCA No.12/2011 Smt. Mohini Jain vs. Shahzad Rai Jain Page 1 of 6
O R D E R
This appeal has been directed against order dated 24.2.2011, passed by Ld. Addl. Rent Controller, Karkardooma Courts, Delhi whereby application filed by the appellants under Section 45 of the Delhi Rent Control Act (hereinafter referred to as the Act) was dismissed.
2 Trial court record has been called. I have heard learned counsel for the parties and have gone through the entire material available on the record.
3 The facts briefly stating are that appellants herein filed a petition under Section 45 of the Act against the respondents alleging therein that shop No.1 in premises No.X/3742, Shanti Mohalla, Main Road, Delhi was under tenancy of Devender Kumar Jain who expired on 2.11.2005 and thereafter appellants herein occupied the premises as statutory tenants and both had been running a shop in the name and style of M/s Raju Cloth House without the electricity. Appellant No.2 herein is alleged to have made a request to respondent No. 1 for restoration of the electricity supply and had served a legal notice dated 5.6.2010 in this regard. Respondent No.1 RCA No.12/2011 Smt. Mohini Jain vs. Shahzad Rai Jain Page 2 of 6 filed reply to the said legal notice but did not restore the electricity with a view to compel them to vacate the premises. 4 Respondents were served with the notice of the petition but since they did not appear, they were proceeded with ex parte. Appellants led their evidence and their arguments were heard. After perusing evidence and appreciating arguments, Ld. Trial Court held that appellants failed to prove that respondents have cut off/ withheld the electricity and thus petition under Section 45 of the Act was dismissed.
5 Being aggrieved with the said order, present appeal has been filed on the grounds that when respondents were ex parte, their reply Ex.PW1/5 could not have been considered by Ld. Trial Court; Ld. Trial Court did not appreciate the fact that electricity was disconnected after death of Sh. Devender Kumar Jain, therefore, impugned order is liable to be set aside.
6 To obtain relief under section 45 of the Act, following ingredients are to be proved :
(i)Relationship of landlord and tenant;RCA No.12/2011 Smt. Mohini Jain vs. Shahzad Rai Jain Page 3 of 6
(ii)That the tenant was enjoying essential supply/ service at the time of inception of tenancy;
(iii)That the essential supply/ service was cut off/ withheld by the landlord with a view to compel the tenant to evict the premises or to pay enhanced rent; and
(iv)That the same was done by the landlord without any just and sufficient cause.
7 There is no dispute with regard to relationship of landlord and tenant between the parties as appellants claimed themselves to be legal heirs of original tenant Sh. Devender Kumar and this fact has been admitted by respondent No.1 in his reply Ex. PW1/5.
8 As regards the ingredients whether tenant was enjoying electricity at the inception of tenancy or whether electricity was cut off by the landlord with a view to compel the tenant to vacate the premises or same was done by landlord without any just and sufficient cause, perusal of Ex. PW1/5 reply to legal notice, reveals that original tenant Devender Kumar was enjoying electricity and electricity was disconnected during his lifetime due to nonpayment of electricity dues. It is admitted case of the appellants that they are RCA No.12/2011 Smt. Mohini Jain vs. Shahzad Rai Jain Page 4 of 6 running shop from the tenanted premises without electricity after death of Devender Kumar Jain. It is not the case of the appellants that electricity was cut by the landlord/ respondents after they became tenants. Even nothing has been placed on record by appellants whether rent includes electricity charges. Moreover, PW1 or PW2 have not deposed anything that electricity was not cut during lifetime of Devender Kumar Jain for nonpayment of electricity charges by him. Therefore, from the evidence adduced by the appellants, there is nothing to suggest that landlord/ respondents cut their electricity after they became tenants or that they were having electricity at the time when they became tenants. Therefore, appellants have utterly failed to satisfy the ingredients of section 45 of the Act. 9 In view of reasons given above, I hold that there was nothing wrong on the part of Ld. Trial Court in considering reply Ex. PW1/5 to the legal notice. I also hold that impugned order passed by Ld. Trial Court is based on cogent and convincing evidence/ material and proper appreciation thereof. There is no illegality, infirmity or impropriety in the impugned order. Same is accordingly upheld. Appellants have failed to make out any ground in support of their RCA No.12/2011 Smt. Mohini Jain vs. Shahzad Rai Jain Page 5 of 6 appeal. Appeal is accordingly dismissed.
10 Trial court record be sent back to the concerned Court along with copy of the order. Appeal file be consigned to record room.
Announced in the open Court ( P.S. TEJI )
Dated: 13.10.2011 District Judge (East)
Addl. Rent Control Tribunal
Karkardooma Courts : Delhi
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